from the Hamilton Superior Court The Honorable Jonathan
Brown, Judge Trial Court Cause No. 29D02-1312-CT-11485
ATTORNEYS FOR APPELLANT Ryan O. Farner Thomas E. Rosta
Metzger Rosta, LLP Noblesville, Indiana
ATTORNEYS FOR APPELLEE Richard R. Skiles Carlo T. Girolamo
Skiles Detrude Indianapolis, Indiana
OF THE CASE
Appellant-Defendant, American Access Casualty Company
(American Access), appeals the trial court's denial of
its motion for summary judgment on Appellee-Plaintiff's,
Cincinnati Insurance Company (Cincinnati Insurance), third
party Complaint for declaratory judgment.
American Access presents us with one issue on appeal, which
we restate as: Whether the business use exception in American
Access' insurance policy bars coverage to Cincinnati
AND PROCEDURAL HISTORY
On August 4, 2013, Roland Hall (Hall), while riding a bicycle
along Cumberland Road, was struck by a vehicle driven by
Jairiel Berfect (Berfect). The vehicle driven by Berfect was
owned by Demelece Stewart (Stewart). At all times relevant to
this case, both Berfect and Stewart were insured by American
Access under separate insurance policies. At the time of the
accident, Berfect was employed part-time by Advantage Home
Health Care (Advantage Home) as a home health aid and was
scheduled to visit two patients. When the incident occurred,
Berfect had concluded one appointment and was on her way to
work her shift at a second patient's residence. Advantage
Home "does not compensate home health aides for their
travel time to patient's [sic] homes" or pay mileage
for travel time. (Appellee's App. Vol. II, p. 30).
"Home health aide employees are paid only for on premise
services performed at a patient's residence."
(Appellee's App. Vol. II, p. 30). Advantage Home is
insured by Cincinnati Insurance.
Hall filed a complaint against Berfect and Advantage Home,
alleging damages resulting from the collision. On February 6,
2016, Advantage Home tendered its request to American Access
to provide a defense to Advantage Home in the cause against
Hall. American Access did not respond to the tender request.
On October 18, 2016, in an effort to determine several
coverage issues, Cincinnati Insurance, as Advantage
Home's insurer, filed a third party Complaint for
declaratory judgment, seeking a judgment as to American
Access' defense and indemnity obligations to Advantage
Home and the priority of coverage as to the respective
Berfect and Stewart policies and Cincinnati's insurance
policy, and asserting, in part, that American Access had a
duty to defend Advantage Home as "Advantage [Home] is an
insured under the Berfect Policy[.]" (Appellant's
App. Vol. II, p. 32).
January 27, 2017, Cincinnati Insurance filed a motion for
summary judgment with respect to the coverage issues. The
trial court granted the motion in the third party action and
concluded that: (1) the American Access policy issued to
Stewart provided primary coverage for Berfect and Advantage
Home; (2) Berfect and Advantage Home were insureds under the
American Access policy issued to Berfect; (3) as an insured
under both the Stewart policy and the Berfect policy,
American Access owed Advantage Home a defense of the claims
brought by Hall; and (4) Berfect is not an insured under the
Cincinnati Insurance policy issued to Advantage Home.
On May 2, 2017, American Access filed its motion for summary
judgment, together with a memorandum of law, and designation
of evidence, contending that American Access owed no duty to
provide coverage as the policy excludes coverage "if the
insured vehicle in question is being used for business
purposes." (Appellee's App. Vol. II, p. 3). On
September 7, 2017, Cincinnati Insurance filed its response in
opposition, memorandum of law, and designation of evidence.
On October 30, 2017, after a hearing, the ...